SHAH WALEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2863/2018

[2020] HKCFI 966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2863 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a Pakistani national. He arrived in Hong Kong on 13 November 2015 illegally and was arrested on the same day. He was referred to the Immigration Department on 15 November 2015 for further investigation and he lodged a non‑refoulement on the same day.

3.  His reason for his application is that if he was refouled to Pakistan, he would be harmed or killed by member of Muttahida Qaumi Movement (“MQM”) because they demanded him for extortion which he had refused.

4.  In his statements given to the Director and the Board, he claimed that he was working in a shop as a cleaner in 2014. One day, some MQM members came to the shop and demanded money from all the people there. He refused to pay and asked them why he should pay. He was hit and slapped there and then. Those people came to the shop every two or three days after the first incident. Each time, he refused to pay, he was assaulted. He had reported the incidents to the police. But they took no action. He then quitted from his job, moved to other places. However, the MQM people had obtained his phone number and called him. He then came to Hong Kong.

The Director’s Decisions

5.  The Director considered his application in relation to the following risks:

a.     Torture risk under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) (“Torture risk”)

b.     Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.  By Notice of Decision dated 28 February 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 19 September 2018.

8.  By Decision dated 3 December 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s case carefully. It concluded that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the grounds raised by him. It came to such conclusion having considered the following matters:

a.     he raised new claim of having personal fight with the gangsters of MQM, which he did not raise at the screening stage [34];

b.     the Adjudicator did not accept his evidence that MQM extorted money from him in Karachi as the Country of Origin information (“COI”) did not support such activities by MQM in Karachi [35];

c.     he exaggerated the extent of demand for money, threats and harm he faced against the COI [36];

d.     the Adjudicator accepted that he was extorted for money but she did not accept that the MQM extorted money on political motivation because this was inconsistent with his own evidence [37];

e.     the Adjudicator doubted that the MQM gangsters were angry and violent towards him because he reported them to the police. This was inconsistent with his own evidence [38];

f.     the Adjudicator did not accept his evidence that the MQM members would track him down in Attock as his family were all along living there [40]; and

g.     the applicant would be able to relocate himself to Attock if he returned to Pakistan [56 & 63].

10.  In his Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.  In his affirmation in support of his application dated 13 December 2018, the applicant relied upon the following grounds:

(1)     he was not provided with language assistance;

(2)     he was not provided with legal assistance for this application;

(3)     the Director and the Board did not treat the Country of Origin Information (COI) fairly as they did not give sufficient weight to such information that assisted his claim, but just gave weight to the information that held against his claim;

(4)     he considered that the Director was adopting a formula and biased approach to turn down the claims for non-refoulement;

(5)     it was unfair, unreasonable and illogical for the Board to give no weight to his evidence, in particular, his documentary evidence, which is inconsistent with the approach set out in Shafqat Ali v Betty Kwan & Others (unreported, HCAL 74/2012, 17 December 2013), adopting the English authority that the decision-maker must not exclude any matters from its consideration when it was assessing the evidence unless it can safely discard them because it has no doubt that they did not in fact occur;

(6)     the Board’s Decision was not translated to him whereas in other cases, there was translation for other claimants, so this is unfair to him; and

(7)     the Director had not set out his explanation as to how he exercised the balancing exercise in considering the COI.

DISCUSSION

The Director’s Decision

12.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

14.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His friend had explained to him the Hearing Bundle. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

15.  It is obvious that the Board rejected all the salient evidence in support of his claim. He has no factual basis in support of his claim.

16.  All those grounds are irrelevant to the Board’s findings above.

17.  The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

18.  This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

19.  The applicant does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

20.  Grounds (1) is inconsistent with what he said in court. They are simply not true.

21.  Grounds (2) fails.

22.  Grounds (3), (4) and (5) are his opinions without any evidence in support of them. They fail.

23.  Ground (6) serves him no purpose as he has not even identified that case, setting out the facts and the circumstances of it.

24.  Ground (7) does not sustain because the Director had to apply his commons sense, expertise and experience to make the assessment. The applicant has not identified in what respect he considered the Director was unfair or illogical in his assessment of the COI.

25.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

26.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1